Corporate Immigration 2023 Comparisons

The Trump administration reshaped business immigration by introducing executive actions and changes at the administrative level that curtailed virtually every route for high-skilled foreign workers. During the Trump administration, the effect on companies and their ability to move employees to the US was palpable. While the Biden administration has taken steps to reverse some of these policies and regulations and to implement a more lenient approach to immigration, US employers and foreign nationals continue to advocate for improvements in immigration policies.

Upcoming Changes

Some of the most relevant upcoming changes to immigration policy in the US include:

In January 2023, the U.S. Citizenship and Immigration Services (USCIS) published a proposed rule that would significantly raise filing fees for immigration benefit requests for most high-skilled classifications. The proposal would impose significant costs on employers. US immigration and business organisations have voiced their concerns about the proposed increases. After reviewing and considering the comments on the proposed rule, USCIS will formulate a final rule. Higher fees will not take effect for at least several months, and the possibility of litigation means implementation could be delayed even further.

On 4 May 2023, the U.S. Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) announced a 30-day grace period to reach compliance with Form I-9 document inspection requirements once COVID-19-related I-9 flexibilities come to an end on 31 July 2023. US employers have until 30 August 2023 to reach compliance with Form I-9 document inspection requirements for those employees hired on or after 20 March 2020, and who have only received a virtual examination under the temporary Form I-9 flexibilities.

A new Form ETA-9089 for PERM Labor Certification applications has been launched by the Department of Labor (DOL)’s Office of Foreign Labor Certification (OFLC). Effective 1 June 2023, the new ETA-9089 can be submitted online through the Foreign Labor Application Gateway (FLAG) portal.

The Department of State plans to launch a Domestic Visa Renewal pilot programme in 2023. A Federal Register notice with details on the pilot will be published prior to launch. Following the pilot, the Department intends to launch the Domestic Visa Renewal programme. The programme would allow certain visa holders to renew their visas in the United States rather than having to apply for a visa at a US embassy or consulate abroad.

2023 Regulatory Agenda

Proposed regulations that are being discussed by different federal agencies in 2023 include the following:

• Form I-9 physical examination: The Department of Homeland Security (DHS) plans to finalise a rule that would allow the agency to provide alternatives to physical document examination in some scenarios in the Form I-9 (Employment Eligibility Verification) process.
• Adjustment of status procedures: The DHS plans to publish a proposed rule to update the Adjustment of Status procedures for more efficient processing and immigrant visa usage.
• H-1B modernisation: The DHS plans to issue a proposed rule to “modernise” H-1B requirements and oversight and provide additional flexibility in the F-1 programme.
• H-1B and PERM wages: The DOL plans to publish a proposed rule to strengthen wage protections for the temporary and permanent employment of certain foreign nationals. According to the DOL, the rule will establish a new wage methodology for setting prevailing wage levels for the H-1B/H-1B1/E-3 and PERM programmes.

While the changes the Biden administration has outlined would significantly impact immigration programmes, they are at different stages in the rulemaking process. Proposed regulations are subject to a public notice-and-comment period during which members of the public may submit feedback.

The most common forms of employment-based temporary work visas and green card categories for corporate purposes in the US are outlined below.

Employment-Based Temporary Visas

H-1B Visa specialty occupation

The H-1B Visa classification applies to jobs in a “specialty occupation”, which requires the theoretical and practical application of highly specialised knowledge. Typically, this entails the completion of a specific course of higher education relevant to the job. For certain individuals with specialised skills and considerable work experience that shows a progressive increase in responsibility, equivalency evaluations can be obtained to meet the educational requirements. The H-1B Visa is subject to an annual quota, which is detailed below, and certain DOL requirements regarding wages and working conditions.

L-1 Visa intracompany transfers

The L-1 Visa classification applies to intracompany transferees who, within the three years preceding entry to the US, have been employed outside of the US continuously for at least one year in a managerial, executive, or specialised knowledge capacity, and who will be employed by a branch, parent, affiliate, or subsidiary of that same employer in the US in a managerial, executive, or specialised knowledge capacity. Employees who will be working in the US in a specialised knowledge role will receive L-1B status. Employees who will be working in the US in a managerial or executive role will receive L-1A status.

O-1 Visa extraordinary ability

The O-1 Visa classification applies to individuals with an extraordinary ability in the sciences, education, business, athletics, or the arts. Generally, O-1 applicants will be required to prove that they have extraordinary talent and skill, and that they are renowned in their field.

Country-specific nonimmigrant visas

Citizens of Australia, Canada, Chile, Mexico, and Singapore may have additional work and training visa options (eg, the TN, E-3, and H-1B1 Visas).

• The TN Visa classification applies to citizens of Canada and Mexico whose profession is outlined in the USMCA occupations list (formerly known as the NAFTA occupations list). The individual must meet all the specific qualifications of the position, including but not limited to, education, experience, and profession.
• The E-3 Visa classification applies to nationals of Australia who have a legitimate offer of employment in the US and possess the necessary academic or other qualifying credentials for a “specialty occupation”.
• The H-1B1 Visa classification (subcategory of the H-1B) was created for nationals of Chile and Singapore as a result of the United States-Chile Free Trade Agreement Implementation Act, and the United States-Singapore Free Trade Agreement Implementation Act.

Employment-Based Immigrant Classifications (Green Cards)

There are five permanent employment-based immigrant preference categories. The three most common are outlined below.

EB-1

Three types of foreign nationals may qualify for the EB-1 or First Preference category:

• individuals of Extraordinary Ability (EB-1A) category; this includes foreign nationals who have sustained national or international acclaim in the sciences, arts, education, business, or athletics;
• outstanding professors and researchers (EB-1B); this includes those who have received recognition for outstanding achievements in a particular academic field; and
• multinational managers or executives (EB-1C); this includes foreign nationals who have been employed as a manager or executive for a firm or company outside of the US and will be employed as manager or executive for a related employer in the US.

EB-2

Foreign nationals may qualify for the EB-2 Second Preference category on the basis of their i) advanced degree; or ii) exceptional ability in the sciences, arts, or business. This category typically requires a job offer from an employer and a PERM Labor Certification from the DOL, but this requirement can be waived for foreign nationals who qualify for a National Interest Waiver (NIW). A NIW petition does not require an employer sponsor.

EB-3

Foreign nationals may qualify for the EB-3 Third Preference category under the following three types of circumstances: i) skilled workers; ii) professionals; and iii) unskilled workers (other workers).

The main unsponsored nonimmigrant work and investment visas are outlined below.

E-1 Treaty Trader

The E-1 Visa classification applies to nationals of a treaty country with which the US maintains ties of navigation and commerce. The individual must be an executive, manager, or specialist in a treaty-nation company where that individual owns at least half of the company, or at least 50% of the company stock is owned by nationals of the treaty country. Certain employees of a qualifying treaty-nation company may also qualify for E-1 Visa classification.

E-2 Visa Treaty Investor

The E-2 Visa classification applies to nationals of a treaty country with which the US maintains ties of navigation and commerce. The individual must have invested, or be actively in the process of investing, a substantial amount of capital in a real and operating commercial enterprise in the US. The proffered position in the US must be an executive/supervisory position or require skills essential to the company’s operations in the US. Certain employees of a treaty investor may also qualify for an E-2 Visa.

The main investment immigrant visa includes the EB-5 classification. There are two types of requirements to qualify for the EB-5 Fifth Preference category: i) make the necessary investment of capital in a commercial enterprise in the US; and ii) plan to create or preserve the required full-time jobs for qualified US workers.

USCIS has published online resources to provide an overview of some of the temporary and permanent pathways (including the International Entrepreneur Rule) for noncitizen entrepreneurs to work in the US.

For unsponsored work immigration routes, certain qualifying foreign nationals are eligible to file a Form I-140 (Immigrant Petition for Alien Worker) on their behalf as a “self-petitioner” without an offer of employment from a US employer. This type of green card process is referred to as “self-sponsorship”. The following employment-based preference categories allow foreign nationals to file their own Form I-140:

• EB-1A First Preference Category – Extraordinary Ability; and
• EB-2 Second Preference Category – NIW (National Interest Waiver).

A visitor may participate in limited activities of short duration as authorised by US immigration authorities. Business visitors enter the US either on a B-1/B-2 Visitor Visa or under the Visa Waiver Program (VWP).

The VWP permits certain foreign nationals to conduct business activities for up to 90 days without obtaining a B-1/B-2 Visitor Visa at a US embassy or consulate, provided they are eligible citizens of a qualifying country. Foreign nationals travelling to the US under the VWP must have an approved Electronic System for Travel Authorization (ESTA). Business visitors not eligible for the VWP must generally obtain a B-1/B-2 Visitor Visa prior to travel by submitting an application to a US Embassy/Consulate. Visitors who are citizens of Canada or Bermuda, Bahamian nationals or British subjects in certain islands are not required to have a visa to travel as a visitor.

The following are examples of permissible activities for a business visitor:

• attending business meetings;
• taking orders for goods manufactured outside the country;
• attending a trade show, conference, or seminar; and
• negotiating contracts or performing litigation.

If an activity requires work authorisation, entering the US as a business visitor is generally not permitted.

It is not possible to work remotely in the US for an employer located abroad without work authorisation. The US does not currently have a specific visa category for digital nomads. Business visitors are generally prohibited from engaging in productive work activities and must remain on foreign payroll.

Language requirements may apply to certain US nonimmigrant classifications. Foreign nationals who plan to apply for an F-1 or M-1 visa must be proficient in English or be enrolled in courses leading to English proficiency. J-1 applicants must be proficient in English.

Additionally, to be eligible for naturalisation, foreign nationals must undergo a naturalisation test to demonstrate that they are able to read, write, and speak basic English.

When applying to become a lawful permanent resident (LPR) through an Adjustment of Status (AOS) application in-country or through the consular process for an immigrant visa to enter the US as an LPR, a foreign national generally must provide a medical examination confirming their eligibility. As part of the medical exam, the doctor will check the foreign national’s vaccination records and ensure that the applicant has received all required vaccines for preventable diseases. The complete list of vaccinations needed may be found on the Centers for Disease Control (CDC) website.

Some temporary travellers may also require a medical exam at the consular officer’s discretion or based on US immigration policy, such as the requirement that visa applicants be referred to a panel physician for medical testing if they have a single alcohol-related arrest or conviction within the last five years, or if there are two or more alcohol-related arrests or convictions within the last ten years, or if there is any other evidence to suggest an alcohol problem.

Salary and qualification requirements for the most common corporate nonimmigrant and immigrant visas (green cards) in the US are outlined below.

Employment-Based Temporary Visas

• H-1B Visa Specialty Occupation: The minimum entry-level requirement for the job is a bachelor’s degree in a relevant field or equivalent. For certain individuals with specialised skills and considerable work experience that shows a progressive increase in responsibility, equivalency evaluations can be obtained to meet the educational requirements. The employee must be paid by a US company, and the salary must meet the prevailing wage for the occupation in the area of intended employment.
• L-1 Visa Intracompany Transfers:  Individual L-1B and L-1A categories do not require a degree but require managerial or specialised knowledge in a relevant field. Employees may remain on overseas payroll or be paid by the US company. L-1B Blanket applications require a bachelor’s degree in a relevant field or other relevant qualifications.
• O-1 Visa Extraordinary Ability: The foreign national must demonstrate extraordinary ability in the sciences, arts, education, business, or athletics, or a demonstrated record of extraordinary achievement in the motion picture or television industry. The foreign national must have been recognised nationally or internationally for those achievements. Employees must be paid by the US company.
• E-1 Treaty Trader: The foreign national must be an executive, manager, or specialist in a treaty-nation company where that individual owns at least half of the company or at least 50% of the company stock is owned by nationals of the treaty country. Foreign nationals may remain on overseas payroll or be paid by the US company.
• E-2 Visa Treaty Investor: The foreign national must be an executive, supervisor, or essential employee (not necessarily an employee of a company abroad or investor). Foreign nationals may remain on overseas payroll or be paid by the US company.

Country-Specific Nonimmigrant Visas

• TN Visa: Nationals of Canada and Mexico must meet all the specific qualifications of the position (which must be listed under the USMCA occupation list), including but not limited to education, experience, and profession.
• E-3 Visa: Australian nationals must have at least a bachelor’s degree in a relevant field, and employees must have relevant degrees or equivalent experience. Employees must be paid by the US company and meet US prevailing wage levels.
• H-1B1 Visa: Nationals of Chile and Singapore must have at least a bachelor’s degree in a relevant field and must have a relevant degree (or equivalent experience). Employees must be paid by a US company and meet US prevailing wage levels.

Employment-Based Immigrant Classifications (Green Cards)

• EB-1: The foreign national must be an alien of extraordinary ability (EB-1A), an outstanding professor or researcher (EB-1B), or a multinational manager or executive (EB-1C). To qualify as an alien of extraordinary ability, the foreign national must demonstrate that they have received sustained national or international acclaim through achievements in the sciences, arts, business, education, or athletics. To qualify as an outstanding researcher or professor, the foreign national must apply to work full-time in a research-related position in the US and document that they have received recognition for outstanding achievements in a particular academic field. To qualify as a multinational manager or professor, the foreign national must have been employed as a manager or executive for a foreign affiliate/subsidiary of the US employer for at least one out of the three years prior to entering the US, and their role in the US must also be managerial or executive.
• EB-2: Foreign nationals may qualify for the EB-2 second preference category on the basis of their:
1. Advanced degree: this includes foreign nationals who possess at least an advanced degree (a master’s degree or higher); or
2. Exceptional Ability: this includes foreign nationals with exceptional ability in the sciences, arts, or business.
• EB-2 NIW: Foreign nationals must demonstrate that they meet the eligibility requirements for the EB-2 classification (ie, advanced degree or exceptional ability) and also that they are eligible for and merit a National Interest Waiver by meeting the following three criteria: i) the foreign national’s proposed endeavour has both substantial merit and national importance; ii) the foreign national is well positioned to advance the proposed endeavour; and iii) on balance, it would be beneficial to the US to waive the requirements of a job offer and thus of a PERM Labor Certification for the foreign national.
• EB-3: Foreign nationals must be skilled workers (minimum two years of training, education, or work experience depending on position), professionals (minimum of a US bachelor’s degree or foreign equivalent), or other workers (unskilled labour requiring less than two years of training or education or work experience).
• EB-4: Foreign nationals must be one of the following categories of “special immigrants”: certain religious workers and their spouse and children; current or former employees of the US government abroad for at least 15 years or a surviving spouse or child of such employee; certain employees of the Panama Canal Company, Panama Zone Government, or of the US government in the Panama Canal Zone and their spouse and children; certain physicians; certain individuals in connection with an officer or employee’s employment with a designated international organisation or NATO; special immigrant juveniles; eligible individuals who served in the Armed Forces and their spouse and children; and, certain broadcasters and their spouse and children. The requirements for the EB-4 Fourth Preference category vary based on the category of “special immigrants” an individual qualifies for.
• EB-5: There are two types of requirements to qualify for the EB-5 Fifth Preference category: i) make the necessary investment of capital in a commercial enterprise in the US; and ii) plan to create or preserve the required full-time jobs for qualified US workers.

In general, an individual can work only for the employer for which they received the visa, but may obtain authorisation to work for a different or additional employer in some circumstances.

An H-1B employee may change employers; however, the new employer must first sponsor the employee’s new work authorisation by filing a petition with USCIS before the employee begins working for the new employer.

An O-1 employee may change employers with prior approval. The new employer must file Form I-129 with the USCIS office listed on the form instructions. If the petition was filed by an agent, an amended petition must be filed with evidence relating to the new employer and a request for an extension of stay.

TN, E-3, and H-1B1 employees may also change employers with prior approval. Please note that E Visa holders may only change to an employer meeting the treaty requirements.

L Visa holders cannot change employers unless the new employer meets the corporate relationship requirements of the L-1 classification. Depending on the case, prior approval may be required.

Visa processing times vary. The length of time it takes for USCIS or the Department of State, whether through the National Visa Center (NVC), Kentucky Consular Center (KCC), or a US embassy or consulate abroad, to process a petition or visa application after they respectively receive it depends on several factors. USCIS’s website publishes general processing times based on the type of petition or application and the Field Office or Service Center location adjudicating the petition or application.

The NVC and KCC do not adjudicate visa applications, but may have a role within the Department of State’s process. Processing times for the NVC can be found on their website. Wait times for appointments for visa applications filed at a US embassy or consulate abroad can be found on the Department of State’s website. In addition, for post-specific information about visa processing, applicants may consult the appropriate US embassy or consulate website for the most up-to-date information regarding visa processing, appointment availability, and requirements for expedited requests.

There may be travel restrictions while an immigration application is pending, or even after an application or visa has been issued that travellers should be aware of. Generally, information about such restrictions is available on USCIS’s website, the Department of State’s website, or the website of the embassy or consulate where the application was filed.

Applicants applying from abroad must generally first obtain a visa through a US embassy or consulate before travelling to and entering the US. Citizens of Canada or Bermuda, Bahamian nationals or British subjects in certain islands may not require a visa to enter the US and may apply to enter the US directly at the port of entry.

For individuals in the US and submitting applications/petitions through USCIS, they may not be able to travel while their application is pending. It is recommended to seek immigration counsel in order to determine if international travel might be possible, depending on the case.

For those with pending green card petitions with USCIS, travel authorisation is required. A travel permit must generally be obtained prior to travel, or the application can be denied.

Visa processing in the US may involve multiple government agencies and application processes, for which processing times may vary. 

USCIS premium processing is available for certain petitions or applications. An additional fee must be paid on top of the normal application costs. Please note that premium processing may be temporarily suspended at the discretion of USCIS at any time. Additional information about who is eligible for premium processing and specific premium processing times is available on the USCIS website.

USCIS may also expedite certain cases based on severe financial loss, emergencies and humanitarian reasons, and other limited reasons.

Visa application processing at US embassies and consulates abroad cannot generally be expedited. Individuals with urgent travel may request an expedite visa interview appointment by following the expedite request instructions for the US embassy or consulate where the application is filed. Expedites are limited and are typically reserved for emergencies. Applicants are required to provide a written justification of their need for urgent travel.

There are no post-visa requirements or steps for an applicant to complete. However, they should be mindful of their Form I-94 (denotes authorised period of stay) to determine if an extension is required so that they remain compliant with immigration laws. As Customs and Border Protection (CBP) no longer issues admission stamps in passports, foreign nationals should retrieve their online I-94 from the CBP website after every entry to ensure the information is correct.

Foreign nationals should also be mindful of their visa expiration date, as the visa can only be used to seek admission to the US during the period the visa is valid. The visa expiration date does not dictate how long an individual may stay in the US; the Form I-94 does.

Foreign nationals in the US must report a change of address to the government within 10 days of moving. This requirement applies to individuals in the US on a temporary status (ie, nonimmigrants) and individuals who hold a green card (ie, lawful permanent residence). More information on how to notify USCIS of the change of address may be found here.

The cost of sponsoring an employment visa in the US varies greatly depending on the visa classification and whether the application is submitted in the US or abroad. On 28 March 2023, the Department of State published a final rule, effective 17 June 2023, to increase consular fees for nonimmigrant visa applications and Border Crossing Cards for certain Mexican citizens. Visa fees for nonimmigrant (temporary) and immigrant (green card) visas can be found here.

As previously mentioned, USCIS published in January 2023 a proposed rule that would significantly raise filing fees for immigration benefit requests for most high-skilled classifications. The proposal would impose significant costs on employers. After reviewing and considering the comments on the proposed rule, USCIS will formulate a final rule. Higher fees will not take effect for at least several months, and the possibility of litigation could delay implementation.

Depending on the nonimmigrant or immigrant (green card) visa classification, the sponsoring employer is responsible for certain costs. For example, the Department of Labor regulations expressly prohibit an employee from paying for or contributing to any fees and costs associated with the PERM Labor Certification application process. Certain costs may be paid by the foreign employee, such as the cost of obtaining required documents or any fees associated with the translation of documents. It is recommended to seek immigration counsel for further guidance on the costs of a particular visa application and obligations.

Fines and penalties vary among the different federal government agencies tasked with enforcing immigration laws. For example, noncompliance monetary fines for Form I-9 paperwork violations run from USD272 to USD2,701 per violation. U.S. Immigration and Customs Enforcement (ICE) as well as the Department of Justice’s Immigrant and Employee Rights Section (DOJ IER) have the authority to issue civil penalties for failing to comply with Form I-9 employment verification requirements.

Committing or participating in document fraud for satisfying a requirement or benefit of the employment verification process or the Immigration and Nationality Act (INA), knowingly hiring unauthorised workers, committing document abuse, and unlawful discrimination against an employment-authorised individual in hiring, firing, or recruitment, or referral for a fee can give rise to fines and even criminal liability.

The DOL may assess civil monetary penalties specific to the record-keeping requirements related to Labor Condition Applications (LCA) and the related Public Access File (PAF). Specifically, government regulations provide that DOL may assess penalties for violating requirements related to public access where the violation impedes the ability of the DOL to determine whether a violation has occurred or the ability of members of the public to have the information needed to file a complaint.

Additionally, information contained in or missing from the Public Access File could lead the DOL to assess civil monetary penalties for other violations of the DOL regulations (eg, the DOL could identify a deficiency in the PAF that then leads to an investigation regarding other H-1B obligations). The following are the most common violations enforced by the DOL:

• failure to provide required notice;
• wilful failure to pay wages;
• lack of specificity on Labor Condition Applications; and
• misrepresentation of a material fact.

Monetary penalties for these violations are steep and can rise to the level of disqualification from filing immigration petitions with USCIS. Outside the formal enforcement scheme, the agencies responsible for determining eligibility for immigration benefits and visas, the Department of Homeland Security (DHS) and the Department of State (DOS), also drive compliance with the legal requirements through adjudications. The agencies may apply increased scrutiny to a company’s H-1B and other immigration filings, which leads to adjudication delays and workforce disruptions.

The government can also pursue criminal investigations related to immigration sponsorship. The False Claims Act prohibits knowingly making false claims to the government, and imposes significant monetary penalties on violators. A separate provision of federal law prohibits knowingly making under oath, or under penalty of perjury, knowingly subscribing as true, any false statement with respect to a material fact in any application, affidavit, or other document required by the immigration laws or regulations, or knowingly presenting any such application, affidavit, or other documents which contains any such false statement or which fails to contain any reasonable basis in law or fact. A violation of this provision is punishable by a fine or imprisonment for up to ten years, or both, depending on the circumstances. The Department of Justice (DOJ) routinely publishes announcements of settlement agreements with companies that result from such investigations.

The INA also imposes severe immigration-related penalties for fraud or misrepresentation when seeking an immigration benefit. An individual found to have committed fraud or misrepresentation is subject to a permanent bar on admission to the United States. A misrepresentation can be characterised as material: i) if the foreign national was inadmissible on the true facts; or ii) if the misrepresentation tended to shut off a line of inquiry that was relevant to the individual’s eligibility and that line of inquiry might have resulted in a proper determination that the alien not be admitted.

Employer obligations in the US for some of the most common corporate nonimmigrant and immigrant (green card) visas in the US include but are not limited to:

• Regulations require employers in the US complete and retain Form I-9, Employment Eligibility Verification, for every person they hire for employment after 6 November 1986, in the US as long as the person works for pay or other types of payment. Please refer to 6.3 Right to Work Check Requirements for more information.
• Employers in the US are required to report specific changes in their foreign national employees’ employment activities to the federal agencies overseeing immigration benefits in certain categories. For example, employers have legal obligations relating to notifying affected workers at the worksite where the employee will be placed that the company will be hiring an H-1B worker.
• Employers of H-1B, H-1B1, and E-3 nonimmigrants must make certain documents available for public inspection at the employer’s principal place of business or at the place of employment within one day after the date of submission of the LCA to the Department of Labor (DOL).

For information regarding penalties for noncompliance, please refer to 6.1 Enforcement Action Against Individuals and/or Sponsors.

Under US law, all US employers must conduct employment eligibility verification for every person hired in the US if they will work for pay or other type of remuneration. Employers must conduct employment eligibility verification by completing and retaining Form I-9, Employment Eligibility Verification, as required by law. This applies regardless of an employee’s citizenship, immigration status, or national origin. Specific exceptions may apply for completing and retaining Form I-9. Employers must complete the Form I-9 for each worker (including foreign nationals) who begins employment in the US after 6 November 1986, including workers who remain on foreign payroll. Employers must generally reverify employment authorisation documentation for all employees whose authorisation is expiring to ensure that the employee is still authorised to work, although there are exceptions. The employment verification process in the US is complex, and employers risk both civil and criminal penalties for noncompliance.

Most visa types allow for certain dependent family members, but which family members qualify for a visa may vary. 

Certain family members of foreign nationals may obtain nonimmigrant or immigrant (green card) visas or status based on their relationship with the foreign national. The foreign national is known as the “principal” nonimmigrant, and the qualifying family members are known as the “dependent” or “derivative” nonimmigrants.

Dependents are typically limited to the principal’s spouse (opposite or same-sex marriages) or unmarried children under the age of 21. Dependents may seek admission to the US for the same duration as the principal’s stay. Domestic partners (opposite or same-sex), such as those in a civil union, may qualify for a B-2 Visitor Visa to accompany a principal to whom they are not legally married.

An immigrant visa (green card) may also be available to other family members, such as a son or daughter over 21, or the parents and siblings of US citizens. These family members are not typically considered “dependents” but may have a path to obtain a green card.

Only certain nonimmigrant classifications allow the family members (also known as “dependents” or “derivatives”) to work in the US.

Depending on the nonimmigrant classification family members may not accept employment in the US until the dependent family members receive employment authorisation from USCIS in the form of an Employment Authorisation Document (EAD).

Dependent family members must also comply with state and federal laws regarding employment, such as child labour laws that prohibit the employment of individuals below a certain age.

Individuals who receive lawful permanent resident status (a “green card”) are work authorised.